Exhibit 10.6
SERVICE AGREEMENT
This Service Agreement is made as of the 1st day of November, 2006
between Pinnacle Consulting, Inc., a Missouri corporation ("PROVIDER"), and
FutureFuel Corp., a Delaware corporation ("RECIPIENT").
RECITALS
A. Recipient is in need of certain financial, accounting and other
services.
B. Provider is willing to provide such services to Recipient on the
terms set forth herein.
AGREEMENT
In consideration of the foregoing, the mutual covenants herein
contained and other good and valuable consideration (the receipt, adequacy
and sufficiency of which are hereby acknowledged by the parties by their
execution hereof), the parties agree as follows.
1. DEFINITIONS. For purposes of this Agreement, the following capitalized
terms have the following meanings.
"ACCOUNTING SERVICES" means any tax, accounting, financial or
payroll reporting services requested by Recipient, including: (i) the
preparation of general ledgers and monthly or other periodic accounting
statements, reports and Financial Statements; (ii) the obtaining of
necessary licenses and permits; and (iii) the filing of tax returns and
other reports or records with appropriate Governmental Authorities.
"AFFILIATE" means: (i) any person which, directly or indirectly, is
in control of, is controlled by or is under common control with the party
for whom an affiliate is being determined; or (ii) any person who is a
director or officer (or comparable position) of any person described in
clause (i) above or of the party for whom an affiliate is being determined.
For purposes hereof, control of a person means the power, direct or
indirect, to: (a) vote 10% or more of the securities having ordinary voting
power for the election of directors (or comparable positions) of such
person; or (b) direct or cause the direction of the management and policies
of such person, whether by contract or otherwise and either alone or in
conjunction with others.
"AGREEMENT" means this Service Agreement, including all Exhibits
hereto.
"CONFIDENTIAL INFORMATION" means: (i) information not available to
the public concerning Provider's business and financial affairs delivered by
or on behalf of Provider to Recipient; (ii) information not available to the
public concerning Recipient's business and financial affairs delivered by or
on behalf of Recipient to Provider; and (iii) analyses, compilations,
forecasts, studies and other documents prepared on the basis of such
information by the parties or their agents, representatives, Affiliates,
employees or consultants.
"DATA PROCESSING SERVICE" means that computer and data processing
personnel time required to develop, maintain and run the necessary programs
to prepare and store Recipient's operating, financial and tax reports,
Financial Statements, billing statements and payroll and other records, all
as requested by Recipient.
"DISCLOSING PARTY" has the meaning set forth in Section 11.4.
"FINANCIAL SERVICES" means: (i) processing the payment of
expenditures; (ii) negotiating with lenders and servicing all loans; (iii)
opening bank accounts; (iv) managing investments; (v) performing bookkeeping
and record keeping associated with the foregoing; and (vi) performing any
other financial services; all as requested by Recipient.
"FINANCIAL STATEMENTS" means the consolidated and consolidating
financial statements of Recipient and Recipient's Subsidiaries for the
applicable period, containing balance sheets, statements of income, changes
in stockholders' equity and cash flow, prepared in accordance with GAAP on a
consistent basis, and includes all notes thereto.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment
of the accounting profession.
"GENERAL ADMINISTRATIVE SERVICES" means those general office
services requested by Recipient, including secretarial and clerical work.
"PROVIDER" has the meaning set forth in the opening paragraph of
this Agreement.
"RECIPIENT" has the meaning set forth in the opening paragraph of
this Agreement.
"SERVICES" means, collectively, the Accounting Services, the Data
Processing Services, the Financial Services and the General Administrative
Services.
"SUBSIDIARY" with respect to any person means: (i) any corporation
of which such person and its other Subsidiaries own not less than 50% of the
outstanding stock of such corporation having ordinary voting power for the
election of directors of such corporation; (ii) any limited liability
company in which such person is a manager thereof (if management of the
limited liability company is vested in one or managers) or in which such
person and its other Subsidiaries own not less than 50% of the outstanding
member interests of such limited liability company (if management of the
limited liability company is vested in members); or (iii) any partnership,
limited or general, in which such person is a general partner.
2. SERVICES PROVIDED. Subject to the terms and conditions hereof, during
the term of this Agreement, Provider agrees to provide Recipient and its
Affiliates with all requested Services.
3. COMPENSATION FOR SERVICES. In consideration of Provider providing the
Services hereunder, Recipient agrees to pay to or for the account of
Provider, within ten days of invoice, for employees or independent
consultants of Provider in performing the Services the amounts set forth on
Exhibit A. In addition, Recipient agrees to reimburse Provider, within ten
days of invoice, for the reasonable, out-of-pocket ordinary and necessary
business expenses incurred by Provider in performing the Services for
Recipient hereunder.
4. INVOICING. Provider agrees to invoice Recipient not more regularly
than monthly for the Services provided by Provider to Recipient hereunder.
5. EMPLOYEES. Provider agrees that all personnel providing the Services
to Recipient required hereunder are the employees or independent consultants
of Provider and in no event are any such personnel employees (nor are they to
be deemed to be employees) of Recipient.
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6. COMPLIANCE WITH LAWS. Provider agrees that all Services provided to
Recipient hereunder will comply with all applicable laws in all material
respects.
7. WARRANTIES AND DAMAGES. Provider makes no warranty regarding any
Service provided by Provider to Recipient hereunder except as set forth in
Section 6. Provider will not be liable to Recipient for any damages
resulting from the delay or failure in providing a Service hereunder if the
delay or failure was caused by events beyond Provider's control.
8. TERM. This Agreement remains effective until terminated by either
party upon 30 days prior written notice to the other party. Notwithstanding
any such termination, Recipient is obligated to pay any amounts owed to
Provider hereunder through the date of such termination.
9. RECORDS. Any and all financial records, computer records or other data
or documentation that Provider prepares on behalf of Recipient in providing
the Services as set forth in this Agreement are the property of Recipient.
Provider agrees to deliver reasonably promptly such records, data and
documentation to Recipient upon Recipient's request therefor and upon the
termination of this Agreement. The obligation of Provider to release any
such records, data and documentation related to or stored on behalf of
Recipient, including that which is in Provider's computer or computer
programs or software, survives the termination of this Agreement.
10. RIGHT TO AUDIT. Recipient has the right, upon reasonable notice and
during reasonable times, to review Provider's books and records with respect
to the Services provided by Provider to Recipient in accordance with this
Agreement.
11. MISCELLANEOUS.
11.1. AMENDMENT AND MODIFICATION. No amendment, modification,
supplement, termination, consent or waiver of any
provision of this Agreement, nor consent to any departure
herefrom, will in any event be effective unless the same
is in writing and is signed by the party against whom
enforcement of the same is sought. Any waiver of any
provision of this Agreement and any consent to any
departure from the terms of any provision of this
Agreement is to be effective only in the specific instance
and for the specific purpose for which given.
11.2. ASSIGNMENTS. No party may assign or transfer, voluntarily
or involuntarily, by operation of law (including a merger
or consolidation), judicial decree or otherwise, any of
its rights or obligations under this Agreement to any
other person without the prior written consent of the
other party, which consent may not be unreasonably
withheld.
11.3. CAPTIONS. Captions contained in this Agreement have been
inserted herein only as a matter of convenience and in no
way define, limit, extend or describe the scope of this
Agreement or the intent of any provision hereof.
11.4. CONFIDENTIALITY. Each party agrees to maintain any
Confidential Information that it may receive from the
other party confidential and may not disclose such
information to any person without the prior written
consent of the party originally furnishing such
Confidential Information. However, a party (the
"DISCLOSING PARTY") may disclose such Confidential
Information: (i) to legal counsel of the Disclosing Party;
(ii) to other professional advisors of the Disclosing
Party (but only if they have been informed of the
confidential nature of such Confidential Information and
agree in writing to be bound by the terms of this
Section); (iii) to regulatory officials having
jurisdiction over the Disclosing Party; and (iv) as
required by law or legal process or in connection with any
legal proceeding to which the Disclosing Party is a party
or is otherwise subject. In each such event (other than
pursuant to clause (i)), the Disclosing Party, prior to
such disclosure, is to inform the party originally
furnishing such
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Confidential Information. The obligations of the parties
under this Section survive the termination of this
Agreement.
11.5. CONSTRUCTION. Unless the context of this Agreement clearly
requires otherwise: (i) references to the plural include
the singular and vice versa; (ii) references to any person
include such person's successors and assigns but, if
applicable, only if such successors and assigns are
permitted by this Agreement; (iii) references to one
gender include all genders; (iv) "including" is not
limiting; (v) "or" has the inclusive meaning represented
by the phrase "and/or"; (vi) the words "hereof", "herein",
"hereby", "hereunder" and similar terms in this Agreement
refer to this Agreement as a whole and not to any
particular provision of this Agreement; (vii) section and
Exhibit references are to this Agreement unless otherwise
specified; (viii) reference to any agreement (including
this Agreement), document or instrument means such
agreement, document or instrument as amended or modified
and in effect from time to time in accordance with the
terms thereof and, if applicable, the terms hereof; and
(ix) general or specific references to any law mean such
law as amended, modified, codified or reenacted, in whole
or in part, and in effect from time to time.
11.6. COUNTERPART FACSIMILE EXECUTION. For purposes of this
Agreement, a document (or signature page thereto) signed
and transmitted by facsimile machine or telecopier is to
be treated as an original document. The signature of any
party thereon, for purposes hereof, is to be considered as
an original signature, and the document transmitted is to
be considered to have the same binding effect as an
original signature on an original document. At the request
of any party, any facsimile or telecopy document is to be
re-executed in original form by the parties who executed
the facsimile or telecopy document. No party may raise the
use of a facsimile machine or telecopier or the fact that
any signature was transmitted through the use of a
facsimile or telecopier machine as a defense to the
enforcement of this Agreement or any amendment or other
document executed in compliance with this Section.
11.7. COUNTERPARTS. This Agreement may be executed by the
parties on any number of separate counterparts, and all
such counterparts so executed constitute one agreement
binding on all the parties notwithstanding that all the
parties are not signatories to the same counterpart.
11.8. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties pertaining to the subject
matter hereof and supersedes all prior agreements, letters
of intent, understandings, negotiations and discussions of
the parties, whether oral or written.
11.9. EXHIBITS. All of the Exhibits attached to this Agreement
are deemed incorporated herein by reference.
11.10. FAILURE OR DELAY. No failure on the part of any party to
exercise, and no delay in exercising, any right, power or
privilege hereunder operates as a waiver thereof; nor does
any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise
thereof, or the exercise of any other right, power or
privilege. No notice to or demand on any party in any case
entitles such party to any other or further notice or
demand in similar or other circumstances.
11.11. FURTHER ASSURANCES. The parties will execute and deliver
such further instruments and do such further acts and
things as may be required to carry out the intent and
purpose of this Agreement.
11.12. GOVERNING LAW. This Agreement and the rights and
obligations of the parties hereunder are to be governed by
and construed and interpreted in accordance with the laws
of the State of Missouri applicable to contracts made and
to be performed wholly within Missouri, without regard to
choice or conflict of laws rules.
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11.13. NO JOINT VENTURE OR PARTNERSHIP. The parties agree that
nothing contained herein is to be construed as making the
parties joint venturers or partners.
11.14. REMEDIES CUMULATIVE. Each and every right granted
hereunder and the remedies provided for under this
Agreement are cumulative and are not exclusive of any
remedies or rights that may be available to any party at
law, in equity or otherwise.
11.15. SEVERABILITY. Any provision of this Agreement which is
prohibited, unenforceable or not authorized in any
jurisdiction is, as to such jurisdiction, ineffective to
the extent of any such prohibition, unenforceability or
nonauthorization without invalidating the remaining
provisions hereof, or affecting the validity,
enforceability or legality of such provision in any other
jurisdiction, unless the ineffectiveness of such provision
would result in such a material change as to cause
completion of the transactions contemplated hereby to be
unreasonable.
11.16. SPECIFIC PERFORMANCE AND INJUNCTIVE RELIEF. Each party
recognizes that, if it fails to perform, observe or
discharge any of its obligations under this Agreement, no
remedy at law will provide adequate relief to the other
party. Therefore, each party is hereby authorized to
demand specific performance of this Agreement, and is
entitled to temporary and permanent injunctive relief, in
a court of competent jurisdiction at any time when any
other party fails to comply with any of the provisions of
this Agreement applicable to it. To the extent permitted
by applicable law, each party hereby irrevocably waives
any defense that it might have based on the adequacy of a
remedy at law which might be asserted as a bar to such
remedy of specific performance or injunctive relief.
11.17. SUCCESSORS AND ASSIGNS. All provisions of this Agreement
are binding upon, inure to the benefit of and are
enforceable by or against the parties and their respective
heirs, executors, administrators or other legal
representatives and permitted successors and assigns.
11.18. THIRD-PARTY BENEFICIARY. This Agreement is solely for the
benefit of the parties hereto and their respective
successors and permitted assigns, and no other person has
any right, benefit, priority or interest under or because
of the existence of this Agreement.
PINNACLE CONSULTING, INC.
By: /s/ Steven G. Twele
---------------------------------------------
Steven G. Twele, President
FUTUREFUEL CORP.
By: /s/ Douglas D. Hommert
---------------------------------------------
Douglas D. Hommert, Executive Vice President
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EXHIBIT A
TO
SERVICE AGREEMENT
CHARGES FOR EMPLOYEES AND CONSULTANTS
Recipient agrees to pay for below employees or independent consultants of
Provider in performing the Services for Recipient in the amounts set forth
below.
Steve Twele $400
Christopher Schmitt $250
Jessie Yehling $150
Joe Ingram $250